HAYES v. WATSON

140 Nev., Advance Opinion 55
IN THE COURT OF APPEALS OF THE STATE OF NEVADA

• BRITT HAYES, AN INDIVIDUAL, No. 85087-COA
Appellant,
vs.
JOHN MICHAEL WATSON, AN
INDIVIDUAL; AND GOMEZ, KOZAR,
MCELREATH AND SMITH,
PROFESSIONAL CORPORATION, AUG 29 2024
D/B/A WESTERN SURGICAL GROUP,
ELIZ
A NEVADA PROFESSIONAL CLERK

CORPORATION, BY
CI IEF DEPUTY CLERK

Respondents.

Appeal from a final judgment and post-judgment order denying
a motion for a new trial in a personal injury action. Second Judicial District
Court, Washoe County; Kathleen M. Drakulich, Judge.
Reuersed and remanded.

Laxalt Law Group, Ltd., and Steven Edward Guinn, Janice Jensen, and
Ryan William Leary, Reno,
for Appellant.

Hutchison & Steffen, LLC, and Russell J. Carr, Jason D. Guinasso, and
Joseph C. Reynolds, Reno; Law Offices of Eric R. Larsen and Reed J.
Werner, Las Vegas,
for Respondents.

BEFORE THE COURT OF APPEALS, GIBBONS, C.J., and BULLA and
WESTBROOK, JJ.

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OPINION

By the Court, BULLA, J.:
A litigant is "entitled to a fair trial but not a perfect one."
McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 553 (1984)
(internal quotation marks omitted). In this opinion, we address when an

imperfect trial becornes an unfair one warranting a new trial. To resolve
this conundrum in this personal injury case, we embrace the doctrine of
cumulative error, which recognizes that "multiple errors, which alone may
not require reversal, may constitute reversible error if the cumulative effect
of the errors resulted in an unfair trial." Est. of Surnrall v. Singing River
Health Sys., 303 So. 3d 798, 814 (Miss. Ct. App. 2020). The cumulative error
doctrine is well established in Nevada's criminal jurisprudence, where
"[t]he cumulative effect of errors may violate a defendant's constitutional
right to a fair trial even though [the] errors are harmless individually."
Valdez v. State, 124 Nev. 1172, 1195, 196 P.3d 465, 481 (2008) (quoting
Hernandez v. State, 118 Nev. 513, 535, 50 P.3d 1100, 1115 (2002)). In the
civil setting, the Nevada Supreme Court has implicitly applied the doctrine,
indicating that errors may be "coupled" with other errors to find reversible
error—the benchmark of an unfair trial. Holderer v. Aetna Cas. & Sur. Co.,
114 Nev. 845, 851, 963 P.2d 459, 463 (1998).
While this court ordinarily would determine whether any given
trial error requires reversal on appeal, this approach can lead to the
erroneous conclusion that the individual errors were inconsequential and
therefore do not warrant a new trial under NRCP 59(a)(1). In cases such as
the one before us, however, it is only by considering the cumulative effect of
these individual errors that the unfairness of a trial can be fully
appreciated. We therefore expressly hold that the cumulative error doctrine

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may be applied in civil cases to resolve whether a litigant was deprived of a
fair trial. Applying the doctrine here, we consider the cumulative effect of
the following alleged trial errors: (1) inappropriate restrictions on the use
of an adverse party's videotaped deposition, (2) violations of the collateral
source rule, and (3) the improper admission of undisclosed testimony of the
designated corporate representative as an NRCP 30(b)(6) witness.' While
we acknowledge that each individual error may not have warranted a new
trial, the cumulative effect of these errors does—because an imperfect trial
turned into an unfair one. Therefore, we reverse and remand for a new
trial.
FACTS AND PROCEDURAL HISTORY
Appellant Britt Hayes, a nurse, and respondent John Michael
Watson, M.D. (Dr. Watson), a surgeon and employee of respondent Gomez,
Kozar, McElreath and Smith, Professional Corporation, d/b/a Western
Surgical Group (Western Surgical, and collectively with Dr. Watson,
respondents) were members of a trauma team at Renown Regional Medical
Center (Renown). Both were assigned to provide emergency care to a
critically injured patient who was admitted to Renown. Upon the patient's
admission, Dr. Watson angrily confronted a paramedic for treating the
patient with Versed—a sedative—while in transit to the hospital, as this
potentially hindered the trauma team's ability to accurately assess the
patient's neurological condition. When assessing the patient, the trauma
team rolled the patient to her side so the backboard—a flat medical device
used to safely transport patients—could be removed from beneath her.
Witnesses differ on exactly what happened next, but it is undisputed that

'We note that additional alleged trial errors were raised for our
consideration on appeal, but we elect to address only three.
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Dr. Watson dropped the backboard onto the floor, hitting Hayes's left foot
resulting in a severe crush injury and requiring Hayes to undergo multiple
surgeries.
Hayes ultimately filed a complaint for personal injury against
respondents, asserting claims for negligence and assault and battery
against Dr. Watson and negligent training, supervision, and retention
against Western Surgical.2 Over the next three years, the parties
propounded written discovery and completed party depositions, including
the deposition of one of Western Surgical's NRCP 30(b)(6) witnesses, Myron
Gomez, M.D. (Dr. Gomez), a trauma surgeon at Renown and a founding
partner of Western Surgical.
In resolving the parties' pretrial motions in limine, the district
court granted Hayes's motion to limit references to workers' compensation,
except as permitted by NRS 616C.215(1.0) (providing mandatory jury
instructions to address workers' compensation liens at trial), to avoid
violating the collateral source rule. But the court denied her motion to
restrict the scope of Dr. Gomez's trial testimony to that given at his NRCP
30(b)(6) deposition.
In their untimely NRCP 16.1 pretrial disclosures, respondents
designated Dr. Gomez as an NRCP 30(b)(6) witness for Western Surgical

2At the time of trial, only the negligence and assault and battery
claims remained. On appeal, Hayes does not challenge the jury's adverse
verdict on her assault and battery claim. Accordingly, this opinion only
applies to her negligence claims. See Powell v. Liberty Mut. Fire Ins. Co.,
127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011) (providing that issues
not raised on appeal by the appellant are deemed waived).
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but failed to identify the subject matters on which he would be testifying.3
Hayes moved to strike the untimely disclosures and also filed separate

objections. Hayes requested the same relief in her motion and objections:
that the court prohibit respondents from using any improperly disclosed
evidence or calling any improperly disclosed witness at trial. The district
court denied Hayes's motion to strike but later in a separate order granted
Hayes's objections to respondents' untimely pretrial disclosures based on
their failure to respond, which effectively barred respondents from calling

witnesses or moving to admit any of their proposed exhibits into evidence
at trial.
Despite this order, respondents identified Dr. Gomez as an
NRCP 30(b)(6) witness for Western Surgical in their trial statement but did
not specifically disclose the subjects on which he was expected to testify.
Respondents failed, however, to seek clarification from the district court
regarding the court's inconsistent rulings on their ability to call witnesses

until the morning of jury selection, when respondents sought to confirm
their ability to call Dr. Gomez as a trial witness. While the district court
admonished respondents that they should have timely addressed the
inconsistent orders, the court ruled that Dr. Gomez would remain on the
list of trial witnesses for the purpose of conducting voir dire, but the court
reserved its decision on whether Dr. Gomez would be permitted to testify.
Eventually, the court allowed him to testify on the second day of trial.

3Trial was scheduled for the August 24, 2021, trial stack, such that
the parties' pretrial disclosures pursuant to NRCP 16.1(3) were due on
July 23. Respondents' pretrial disclosures were filed four days late on
July 27.
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During the proceedings below, Hayes preserved multiple
alleged trial errors. Hayes objected to the district court restricting her use
of video clips from Dr. Watson's videotaped deposition for impeachment
only, arguing NRCP 32(a)(3) permitted her to use his deposition for any
purpose, including demonstrating Dr. Watson's demeanor. Hayes also
objected multiple times to respondents' references to Hayes's workers'
compensation benefits as violating both the collateral source rule and the
district court's previous order restricting such references. Finally, although
at trial Hayes did not specifically object to Dr. Gomez's testimony as being
expert testimony, she had previously filed a motion in limine to prevent him
from exceeding the scope of his deposition testimony, which was given in his
representative capacity as an NRCP 30 (b)(6) witness for Western Surgical.4
The trial concluded after six days. The jury returned a verdict
in favor of respondents, declining to award damages to Hayes.
Hayes timely moved for a new trial under NRCP 59, arguing
that not only was a new trial warranted on the grounds that the jury ignored
the jury instructions regarding negligence, the district court improperly
restricted her use of Dr. Watson's videotaped deposition, and also that there
were numerous other "legal errors, irregularities, and [instances of
attorney] misconduct [that] occurred prior to and during trial, which
ultimately resulted in prejudice to, and an unfair trial" for Hayes. Thus,
Hayes argued that a new trial was necessary under the doctrine of
cumulative error, which she contended was "impliedly adopted" by the

4See BMW v. Roth, 127 Nev. 122, 140, 252 P.3d 649, 661 (2011) ("[A]
fully briefed and definitively ruled on rnotion in limine on an evidentiary
question preserves error for challenges to whether the district court
properly ruled on the motion.").
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supreme court in Holderer. The district court rejected Hayes's cumulative
error argument by distinguishing Holderer as focusing on judicial
misconduct and determining that even if the court erred, which it
specifically found it had not, the individual errors did not rise to the level of
those in Holderer to warrant reversal. Ultimately, however, the district
court did not address the cumulative effect of those errors on the fairness of
the trial. We do so now.
ANALYSIS
Standard of review
In civil actions, a litigant's substantial right to a "fair trial in a
fair tribunal" is protected by the Due Process Clause of the United States
and Nevada Constitutions. See Sicor, Inc. u. Sacks, 127 Nev. 896, 902, 266
P.3d 618, 622 (2011) (establishing that a civil litigant's right to a fair trial
arises out of the Due Process Clause of the United States Constitution); see
also U.S. Const. amend. XIV; Nev. Const. art. 1, § 8(2).
In Nevada, civil litigants who believe that their substantial
rights have been infringed during a trial rnay seek recourse by moving the
district court for a new trial. Under NRCP 59(a)(1), a district court may
grant a new trial for any of the listed causes or grounds "materially affecting
the substantial rights of the moving party," including:
(A)irregularity in the proceedings of the
court, jury, master, or adverse party or in any order
of the court or master, or any abuse of discretion by
which either party was prevented from having a
fair trial;
(B)misconduct of the jury or prevailing
party;

(G) error in law occurring at the trial and
objected to by the party making the motion.
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We review a district court order denying a motion for a new trial
for an abuse of discretion. Michaels v. Pentair Water Pool & Spa, 131 Nev.
804, 814, 357 P.3d 387, 395 (Ct. App. 2015). "In determining whether . . . an
abuse of discretion occurred, this court must view the evidence and all
inferences most favorably to the party against whorn the motion is made."
Id. The inquiry is fact dependent and requires this court to evaluate the
alleged error in light of the entire record. Carver v. El-Sabatvi, 121 Nev. 11,
14, 107 P.3d 1283, 1285 (2005).
The doctrine of curnulative error
Nevada's appellate courts have not formally recognized the
cumulative error doctrine by name in a published opinion to reverse and
grant a new tria1.5 However, the Nevada Supreme Court implicitly applied
the doctrine in Holderer by holding that multiple errors, when considered
together, warranted reversal of the appealed judgment, even when a single
error alone may not have. 114 Nev. at 851, 963 P.2d at 463. Although
Holderer involved different errors than the instant case, the suprerne court
did not suggest that the cumulative error doctrine should be limited to cases
involving identical errors or judicial misconduct. Indeed, such a narrow
application of the doctrine would make little sense because a variety of trial
errors, considered together, may implicate the right to a fair trial.
Further, although the cumulative error doctrine has primarily
developed in Nevada's criminal jurisprudence, the doctrine is a vital tool in

5But see Nelson v. Heer, 123 Nev. 217, 227 n.28, 163 P.3d 420, 427
n.28 (2007) (declining to address appellant's cumulative error argument
because "the alleged errors in the context of the trial are without merit");
FGA, Inc. v. Giglio, 128 Nev. 271, 289 n.9, 278 P.3d 490, 501 n.9 (2012)
("Additionally, because we conclude that there was reversible error, we need
not address FGA's cumulative-error argument.").
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ensuring a fair trial in any context. After all, while the stakes in criminal
and civil trials may differ substantially, civil litigants undoubtedly have a

strong and constitutionally guaranteed interest in a fair trial to resolve
their disputes. Accordingly, the cumulative error doctrine can be applied in
both criminal and civil cases to protect a litigant's right to a fair trial.
Thus, when reviewing an order denying a motion for a new trial

based on the cumulative error doctrine in the civil setting, we first consider
whether "there were too many errors [and] the errors relate to relevant
matters [that] in the aggregateL] rendered the trial unfair." Pellicer ex rel.
Pellicer v. St. Barnabas Hosp., 974 A.2d 1070, 1089 (N.J. 2009) (first
alteration in original) (quoting Diakarnopoulos v. Monmouth Med. Ctr., 711
A.2d 321, 331 (N.J. Super. Ct. App. Div. 1998)). In our review, we accept
that the otherwise incidental errors and irregularities of trial may, when
evaluated as a whole, be "of such magnitude as to prejudice [a litigant's]
rights or, in their aggregate [render] the trial unfair." Id. at 1088 (quoting
State v. Orecchio, 106 A.2d 541, 542 (N.J. 1954)). Consequently, "[t]he

cumulative effect of multiple harmless errors may amount to reversible
error." Error, Black's Law Dictionary (12th ed. 2024) (defining "cumulative
error"). Therefore, in applying the cumulative error doctrine in this case,
we need not consider whether one error in isolation warrants reversal when
"[p]rejudice may result from the cumulative effect of a combination of
errors," and "[t]he fact that each of several errors would be harmless in
isolation does not necessarily mean that the errors in the aggregate are
harmless." 5 C.J.S. Appeal and Error § 982 (2019).
Our last step in the cumulative error analysis is to determine
whether reversal and a new trial is warranted. We will reverse and remand
for a new trial in a civil case "when it is apparent that justice requires a

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reversal of a judgment because the presence of several seemingly
inconsequential errors has made any resulting judgment inherently
unreliable." Herbert J. Thomas Mem'l Hosp. Ass'n u. Nutter, 795 S.E.2d
530, 546-47 (W. Va. 2016); see also Utah Chapter of Sierra Club v. Air
Quality Bd., 226 P.3d 719, 736 (Utah 2009) (applying cumulative error
where "the cumulative effect of the several errors undermines our
confidence . . . that a fair trial was had' (quoting State v. Kohl, 999 P.2d 7,
15 (Utah 2000))). We now apply the cumulative error doctrine to this case.
Analyzing the trial errors
We first analyze three of Hayes's asserted errors to determine
if error exists, for without the existence of two or more errors, there are no
errors to cumulate. See Nelson v. Heer, 123 Nev. 217, 227 n.28, 163 P.3d
420, 427 n.28 (2007) (declining to apply cumulative error where no error
exists). In doing so, we agree with Hayes that the following errors
addressed below occurred during trial.
The district court erred in restricting the use of video clips from Dr.
Watson's videotaped deposition
At trial, Hayes sought to use video clips from Dr. Watson's
videotaped deposition alongside his live testimony for the purpose of
challenging the reliability of his testimony through his demeanor. Hayes
based her request on NRCP 32(a)(3), which provides that the deposition of
an adverse party may be used "for any purpose." Respondents objected and
argued that Hayes could not use Dr. Watson's deposition "for any purpose"
because Dr. Watson was available to testify at trial. The district court
agreed with respondents and found that Hayes could only use the deposition
video clips for impeachment purposes. Consistent with that ruling, when
Hayes sought to use the videotaped deposition to refresh Dr. Watson's
recollection, the district court directed her to use the transcript instead.
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Hayes was therefore unable to introduce any of the video clips from Dr.
Watson's deposition at trial.';
In denying Hayes's motion for a new trial based on the court's
restriction on her use of the video clips from Dr. Watson's deposition, the
district court reasoned that even if it erred, it was harmless because Hayes
was able to impeach Dr. Watson with the transcript and the jury was able
to assess Dr. Watson's demeanor at trial. Specifically, the district court
stated that the error, if any, would be harmless because "[s]ignificant
evidence was presented to the jury about Dr. Watson's demeanor outside of
the courtroom." The court's order also cited testimony that described
instances of Dr. Watson yelling, throwing items, becoming angry, and using
profanity.
On appeal, Hayes contends that the court abused its discretion
by permitting the video clips from Dr. Watson's deposition only for
impeachment purposes, arguing that NRCP 32(a)(3) plainly allowed her to
use Dr. Watson's videotaped deposition "for any purpose." Respondents
argue, as they did below, that NRCP 32(a)(3) required Dr. Watson to be
unavailable before his deposition could be used for any purpose under the
rule.7

(illayes conceded at oral argurnent that the video clips were not made
part of the record on appeal. Respondents do not challenge that the video
clips would have demonstrated Dr. Watson's demeanor in a way that the
deposition transcript does not, see infra n.7, thus their absence from the
record does not impact our disposition. See Engelson v. Dignity Health, 139
Nev., Adv. Op. 58, 542 P.3d 430, 446 n.14 (Ct. App. 2023) (explaining that
this court need not address issues that are unnecessary to resolve the case
at bar).

7 Respondents also argue that the admission of the video clips would
have confused the jury or needlessly cumulated the evidence presented by

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We initially examine whether the district court's decision to
prohibit Hayes from using any video clips from Dr. Watson's deposition was
an error. Generally, we review "a district court's decision to exclude [or
admit] evidence for an abuse of discretion," and we will not disturb the
district court's exercise of discretion "absent a showing of palpable abuse."
LVMPD v. Yeghiazarian, 129 Nev. 760, 764-65, 312 P.3d 503, 507 (2013)
(internal quotation marks omitted). However, we review the district court's
interpretation and application of a court rule to exclude evidence de novo by
considering the rule's plain language, here NRCP 32(a)(3). Williams v.
State, Dep't of Corr., 133 Nev. 594, 596, 402 P.3d 1260, 1262 (2017); see also
In re Est. of Sarge, 134 Nev. 866, 868, 432 P.3d 718, 721 (2018) (holding that
this court applies the rules of statutory interpretation when interpreting
the Nevada Rules of Civil Procedure).
NRCP 32(a)(3) states that, "[a]n adverse party may use for any
purpose the deposition of a party or anyone who, when deposed, was the
party's officer, director, managing agent, or designee under Rule 30(b)(6) or
31(a)(3)." Based on the plain language of the rule, we reject the contention
that a party must be unavailable, as NRCP 32(a) does not state on its face,
nor do respondents cite any supporting authority or cogently argue, that a

Dr. Watson's trial testimony. Because the district court did not rule on
these issues below, we need not address them on appeal. See 9352
Cranesbill Tr. v. Wells Fargo Bank, N.A., 136 Nev. 76, 81-82, 459 P.3d 227,
232 (2020) (declining to address an issue that the district court did not
resolve). Further, respondents do not otherwise argue on appeal why the
video clips would be inadmissible under our evidentiary rules. See
Engelson, 139 Nev., Adv. Op. 58, 542 P.3d at 446 n.14. Thus, respondents
have waived any rernaining arguments regarding the admissibility of the
video clips Hayes sought to introduce. See Powell, 127 Nev. at 161 n.3, 252
P.3d at 672 n.3.
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party deponent must be unavailable in order to use the deponent's
deposition at trial for any purpose. See Edwards v. Emperor's Garden Rest.,
122 Nev, 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006) (holding that the
court need not consider claims that are not cogently argued or lack relevant
authority).
In fairness, Nevada's appellate courts have not yet addressed
the "for any purpose" language of NRCP 32(a)(3). Because the Nevada rule
is identical to its federal counterpart, FRCP 32(a)(3), federal jurisprudence
is persuasive authority. See Nutton v. Sunset Station, Inc., 131 Nev. 279,

285 n.2, 357 P.3d 966, 970 n.2 (Ct. App. 2015) ("Where the Nevada Rules of
Civil Procedure parallel the Federal Rules of Civil Procedure, rulings of
federal courts interpreting the federal rules are persuasive authority for
this court in applying the Nevada Rules.").
Federal courts have adopted a broad interpretation of the

phrase "for any purpose," permitting a party to introduce the opposing
party's deposition—including a videotaped deposition—or excerpts thereof,
as evidence, regardless of the availability of the deponent. See Pursche v.
Atlas Scraper & Eng'g Co., 300 F.2d 467, 488 (9th Cir. 1961) (noting that
the use of "for any purpose" "is but a tacit way of saying that the deposition
can be used as original evidence regardless of the presence or absence of the
deponent"); Oracle USA, Inc. u. Rimini St., Inc., No. 2:10-CV-00106-LRH-
PAL, 2015 WL 5089779, at *3 (D. Nev. Aug. 27, 2015) (Order) (determining
that the adverse parties' videotaped "depositions are allowable under
[federal] Rule 32(a)(3) for any purpose, even if the witness is available and
will testify at trial"). Thus, the term "for any purpose" has been broadly
interpreted to mean that the deposition of a party may be introduced by an
adverse party as part of its own case, regardless of whether the deponent is

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available to testify. 10A Fed. Proc., L. Ed. § 26:465 (2024). Consequently,
it is "erroneous for the trial judge to limit the use of a party's deposition to
impeachment purposes." Id. (citing Pingatore u. Montgomery Ward & Co.,
419 F.2d 1138 (6th Cir. 1969)).
We agree with a broad interpretation of the language "for any
purpose" and conclude that, in this instance, the district court abused its
discretion in limiting Hayes's use of Dr. Watson's video deposition for
impeachment purposes only, as Hayes should have been permitted to use
the video for any purpose, including portraying and challenging Dr.
Watson's demeanor. Although we recognize that video and stenographic
depositions are treated similarly under the rules, courts have recognized
benefits of using video as compared to reading a transcript.8 See 58 Am.
Jur. Trials 481 § 88 (2024) ("Deposition testimony which is presented via
videotape is more effective than testirnony read from a transcript."); see also
Slaughter v. Uponor, Inc., No. 2:08-CV-0223-RCJ-(GWF), 2010 WL
3781800, at *3 (D. Nev. Sept. 20, 2010) (Order) ("Videotape may provide
insight into the demeanor and bearing of a witness, while a written
transcript ensures consistency in the written record regarding statements
made during deposition."). The core benefit of video depositions is that they
allow the fact finder to view the deponent's demeanor. See, e.g., Randazzo
v. Ralphs Grocery Co., No. 2:14-cv-1042-GMN-GWF, 2015 WL 4506194, at
*2-3 (D. Nev. July 23, 2015) (Order) (declining to exclude a video deposition

8We note that a deposition may be taken by traditional stenographic
means or by any other means, such as audiovisual. NRCP 30(b)(3)(A).
Thus, NRCP 32(a) applies in determining how Dr. Watson's videotaped
deposition could be used at trial.

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of a plaintiff in part because "the visible manner and demeanor of a witness
are important factors in determining the witness'[s] credibility").
At trial Hayes indicated that she did not intend to play the
entire videotaped deposition, but rather planned to only use selected video
clips prepared in advance of trial to demonstrate Dr. Watson's demeanor,
which may, in certain circumstances, constitute admissible evidence. See,
e.g., Cox v. Copperfield, 138 Nev. 235, 240, 507 P.3d 1216, 1223 (2022)
(recognizing that "[a] party's appearance, demeanor or nontestimonial
behavior in court may constitute evidence on matters at issue in the case"
(alteration in original) (quoting Hon. Robert E. Jones et al., Rutter Group
Practice Guide: Federal Civil Trials and Evidence I 8:364, at SC-34 (Supp.
2021))).9
Because a deponent's viewed demeanor may provide a clearer
indication of a witness's reliability than "the literal meaning of his words,"
United States v. Yida, 498 F.3d 945, 951 (9th Cir. 2007), we cannot say that
the district court's refusal to allow Hayes to use video clips of Dr. Watson's
deposition did not prejudi.ce Hayes's ability to present her case. This is
especially true as Dr. Watson's demeanor was at issue, and the jury did not
have the opportunity to review the whole of Hayes's case, particularly as it
related to Dr. Watson's demeanor. Further, the district court also should

l'See also generally NRCP 30(c)(1) ("The examination and cross-
examination of a deponent proceed as they would at trial under the Nevada
law of evidence, except NRS 47.040-47.080 and NRS 50.155."); see also
Coyote Springs Inv., LLC v. Eighth Jud. Dist. Ct., 131 Nev. 140, 146, 347
P.3d 267, 271 (2015) (recognizing that one purpose of NRCP 30(c) is "to
protect the underlying purposes of deposition rules, which include eliciting
the facts of a case before trial, evening the playing field, and. obtaining
testimony before the witness's recollection has been altered by ... the
helpful suggestions of lawyers" (internal quotation marks omitted)).
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have permitted Hayes to use the video clips to refresh Dr. Watson's
recollection. Because the district court only permitted Hayes to use the
video clips for impeach.ment, the district court erred in restricting Hayes's
use of Dr. Watson's videotaped deposition under NRCP 32(a)(3).
The district court's failure to rule on Hayes's objection during closing
argument to counsel's improper reference to workers' compensation
violating the collateral source rule constituted error
We next determine if counsel's alleged improper references to
workers' compensation violated the collateral source rule resulting in error.
Our review of the record shows that respondents' counsel mentioned
workers' compensation at least 20 times during the trial, many of which
Hayes objected to and the district court sustained. While we could consider
the cumulative effect of multiple instances of attorney misconduct, cf.
Valdez, 124 Nev. at 1197-98, 196 P.3d at 482 (recognizing multiple
instances of prosecutorial misconduct may be cumulated), we need not do
so here. Instead, we elect to address one instance of attorney misconduct
and cumulate it with the other preserved errors. See Rookstool v. Eaton,
457 P.3d 1144, 1149 (Wash. Ct. App. 2020) (declining to treat "each and
every objectionable statement of counsel as a separate misconduct claim").
The one instance of attorney misconduct we focus on occurred
during closing argument where counsel improperly referenced workers'
compensation violating the collateral source rule it) by arguing that "[Hayes]

3 "We acknowledge at least one additional instance of alleged attorney
misconduct occurred during closing argument where counsel stated that
[y]ou heard [Hayes's] counsel argue to you that the workers' compensation
lien amount is not relevant and should be disregarded, but the Court
allowed it to come into evidence, so obviously it is relevant and should be
considered by you in reaching your decision." This arguably violated the
collateral source rule by highlighting the payments Hayes received from
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was not satisfied with the letter or the verbal apology [from Dr. Watson].
She was not satisfied that workers' compensation was paying for her
medical bills." And although Hayes objected based on counsel's failure to
abide by the district court's order restricting references to workers'
compensation so as not to violate the collateral source rule, the district court

only responded with "[rn]ove on. Thank you." The court neither expressly
ruled on the objection nor gave any further admonishment to counsel or a
curative instruction to the jury related to this objection.
In its order denying Hayes's motion for a new trial based on
attorney misconduct, the district court found that the alleged instances of
attorney misconduct related to improper references to workers'

compensation were not extreme. The court also found that Hayes failed to
demonstrate how the court's subsequent admonishment, which directed the
jury to refer to the applicable jury instructions, was insufficient to cure any
alleged violation of the collateral source rule.
Although the abuse of discretion standard applies to the order
granting or denying a new trial, Michaels, 131 Nev. at 814, 357 P.3d at 395,
de novo review applies to the issue of whether attorney misconduct
occurred, Grosjean v. Imperial Palace, Inc., 125 Nev. 349, 364, 212 P.3d
1068, 1078 (2009). In determining whether a new trial for attorney
misconduct is warranted, this court must first determine whether

workers' compensation and suggesting that the payments were relevant to
the jury's decision in awarding compensation, which was inconsistent with
the jury instructions. Although the district court instructed the jury to
review the applicable jury instructions on workers' compensation, which
may have had a curative effect, we cannot say that counsel's misstatement
of the law did not have some prejudicial effect considering the other error
addressed above.
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misconduct occurred. Michaels, 131 Nev. at 815, 357 P.3d at 395. The legal
standard under which alleged misconduct is reviewed depends on whether
the moving party made a timely objection at trial. Lioce v. Cohen, 124 Nev.
1, 17-19, 174 P.3d 970, 980-82 (2008). Additionally, an attorney's violation
of an order in lirnine may constitute attorney misconduct if the order is
specific, the violation is clear, and unfair prejudice is shown. BMW v. Roth,

127 Nev. 122, 126, 252 P.3d 649, 652 (2011).
Here, the district court's order granting Hayes's motion in
limine recognized that "evidence concerning collateral source payments is
inadmissible," citing Proctor u. Castelletti, 112 Nev. 88, 90, 911 P.2d 853,

854 (1996) ("We now adopt a per se rule barring the admission of a collateral
source of payment for an injury into evidence for any purpose."). However,
the court's order also stated that both parties acknowledged that "Nevada
recognizes an exception to the collateral source rule for workers'
compensation payments." Thus, it ordered the parties to adhere to NRS
616C.215(10), which establishes a limited exception to the collateral source
rule for introducing workers' compensation payments, and stated it would
instruct the jury as required by that statute.
We acknowledge that throughout the trial, the district court
sustained many of Hayes's objections to the improper references to workers'
compensation. Unfortunately, the court did not expressly rule on the

objection concerning the improper reference to workers' compensation made
during closing argument which implied that Hayes had already been
compensated for her injury by workers' compensation and was dissatisfied.
As the Nevada Supreme Court explained in Cramer v. Peavy, 116 Nev. 575,
581, 3 P.3d 665, 669 (2000), "NRS 616C.215(10) cannot be used by the
defense to imply that the plaintiff has already been compensated, will

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receive a double recovery if awarded a judgment[j or has overcharged
[workers' compensation]."
While we understand that over the course of a six-day trial this
one instance may not have appeared to the district court to be a sufficient

basis to grant a new trial, courts should be mindful that a violation of the
collateral source rule "inevitably prejudices the jury because it greatly
increases the likelihood that a jury will reduce a plaintiffs award of
damages because it knows the plaintiff is already receiving compensation."
Proctor, 112 Nev. at 90, 911 P.2d at 854. Therefore, we conclude that the
district court erred in failing to expressly and favorably rule on Hayes's
objection. Further, the court's direction to "move on" was insufficient to
ameliorate the prejudice from counsel's statement. Finally, the district
court should have recognized the overall impact of this error when deciding

the motion for a new trial. See Lime, 124 Nev. at 19, 174 P. 3d at 981
(providing that "the district court shall give great weight to the fact that
single instances of improper conduct that could have been cured by objection
and admonishment might not be curable when the improper conduct is
repeated or persistent").
The district court erred in allowing Dr. Gomez to testify beyond the
scope of his NRCP 30(b)(6) deposition testimony
The district court also erred in allowing Dr. Gomez to testify
beyond the scope of his NRCP 30(b)(6) deposition testimony. During

discovery, Smith served an NRCP 30(b)(6) deposition notice on Western
Surgical. The notice identified "[t]he standard procedure for the removal of
backboards beneath trauma patients" as one of the topics for examination.
In response to Smith's NRCP 30(b)(6) notice, Western Surgical designated
Dr. Gomez to testify on its behalf.

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o(1) 194713 44D,,
On direct examination, as part of their case-in-chief,
respondents asked Dr. Gomez, "Are you aware of any trauma surgeons at
Renown that don't drop the backboard on the floor?" (Emphasis added.) Dr.
Gomez answered, "No. As I said before, you know, generally speaking, I
think the standard is that the backboard gets close enough to the floor and,
and it's, put down on the floor. It's dropped on the floor. Perhaps just an
inch or two, but that's what happens." (Emphasis added.)
On cross-examination, Hayes attempted to impeach Dr. Gomez
with his deposition testimony. Specifically, Hayes attempted to clarify that
at his deposition, in his representative capacity as an NRCP 30(b)(6)
deponent, Dr. Gomez indicated that there was no "standard" for placing a
backboard after it has been removed, but instead only testified that the
backboard was "placed somewhere." While he agreed that during his
deposition he did not say anything about the standard for discarding a
backboard, he testified at trial that counsel had not asked him in "enough
detail about the process" at his deposition.
In its order denying Hayes's motion for a new trial, the district
court found that Hayes was not prejudiced by its decision to allow Dr.
Gornez to testify because: (1) Hayes deposed Dr. Gomez in May 2019, two
years before the matter went to trial; (2) the court found good cause to
amend its pretrial order granting Hayes's objections to respondents'
untimely pretrial disclosures, and Hayes was not prevented from calling Dr.
Gomez in her case-in-chief; and (3) Dr. Gomez was never identified as an
NRCP 30(b)(6) witness and, inferentially, he could not be expected to testify
on behalf of Western Surgical.
Hayes argues on appeal that Dr. Gomez's trial testimony was
not harmless because it constituted improper expert testimony as to the

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40) 19473 :41*,
standard of care for discarding a backboard that had not been previously
disclosed. Respondents deny that Dr. Gomez provided expert witness

testimony and instead assert that he testified consistently with his
deposition testimony, which could not have been considered a surprise to
Hayes as she had the opportunity to depose him.
As a preliminary matter, it appears that the parties agree that

Dr. Gomez was designated as an NRCP 30(b)(6) witness and deposed in that
capacity. A review of the record contains not only the notice of Dr. Gomez's
NRCP 30(b)(6) deposition, but also his deposition transcript wherein Dr.
Gomez acknowledged that he was giving answers on behalf of Western
Surgical, and not in his individual capacity. Hayes's motion in limine

specifically identified Dr. Gomez as one of respondents' NRCP 30(b)(6)
deponents, and respondents' trial statement also identified Dr. Gomez as

one of Western Surgical's NRCP 30(b)(6) witnesses, providing further
support of Dr. Gomez's role as a corporate representative. However, in its
order denying Hayes's motion for a new trial, the district court found that
Dr. Gomez did not appear at his deposition as an NRCP 30(b)(6) witness,
nor did respondents identify him as such. These findings are clearly
erroneous. And such factual errors could constitute an abuse of discretion.
See MB Ain., Inc. v. Alaska Pac. Leasing Co., 132 Nev. 78, 88, 367 P.3d 1286,
1292 (2016) ("An abuse of discretion can occur when the district court bases
its decision on a clearly erroneous factual determination . . . .").
In determining whether the district court abused its discretion
or erred in permitting Dr. Gomez, who was designated as an NRCP 30(b)(6)
witness, to testify at trial beyond the scope of his deposition, we first explore
the nature of an NRCP 30(b)(6) deposition. The overarching purpose of a
Rule 30(b)(6) deposition is to "streamline the discovery process" by allowing

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a corporation to designate a witness to speak on its behalf thereby avoiding
multiple depositions of corporate employees. Alvarado-Herrera v. Acuity,
344 F.R.D. 103, 106-07 (D. Nev. 2023).
Generally, the party serving an NRCP 30(b)(6) deposition notice
on an organization, "must describe with reasonable particularity the
rnatters for examination." Id. Upon receiving the notice, the organization
is required to designate "one or more officers, directors, or managing agents"
to testify on its behalf. Under NRCP 30(b)(6), the designated deponent for
the organization must "testify about information known or reasonably
available to the organization." Further, "a [Rule] 30(b)(6) witness testifies
on behalf of the entity for whom the witness appears and, therefore, binds
the entity with that testirnony" and a "corporation has a duty under Rule
30(b)(6) to provide a witness who is knowledgeable in order to provide
binding answers on behalf of the corporation." Layton v. Green Valley Vill,
Cornm. Ass'n, Case No. 2:14-cv-1347-GMN-EJY, 2024 WL 1446185, *3 (D.
Nev. Mar. 26, 2024) (Order) (internal quotation marks omitted). Further,
an organization that discloses an NRCP 30(b)(6) witness in accordance with
NRCP 16.1 remains under a duty to supplement its disclosure when
appropriate. See NRCP 26(e)(1) ("A party who has made a disclosure under
Rule 16.1 . . . is under a duty to timely supplement or correct a disclosure
or response to include information thereafter acquired if the party learns
that in some material respect the information disclosed is incomplete or
incorrect and if the additional information or corrective information has not
otherwise been made known to the other parties during the discovery
process or in writing.").
During his deposition, Dr. Gomez denied preparing for his
testimony and acknowledged that he had only briefly reviewed the NRCP

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f()) 194713 .41E1T)4,
30(b)(6) notice. When Hayes asked questions regarding the standard
procedure for removing a backboard, Dr. Gomez failed to mention any
standard procedure, instead indicating that the backboard could be placed
somewhere" and "occasionally" it might be dropped on the floor and fall on
someone's foot. "Occasionally" does not constitute a standard procedure.
See Occasionally, Merriam-Webster's Dictionary (11th ed. 2020) (defining
occasionally as sornething that happens "on occasion" or "now and then").
But at trial, despite the lack of prior discussion, Dr. Gomez identified a
standard for dropping the backboard onto the floor, which was consistent
with Dr. Watson's testimony as to how he discarded the backboard that
injured Hayes. Therefore, Dr. Gomez's trial testimony supported
respondents' position that Dr. Watson rnet the standard when he discarded
the backboard by dropping it to the floor in a trauma setting.
We conclude that it was an abuse of discretion to permit Dr.
Gomez to give this trial testimony, which was beyond the scope of his
deposition testimony, when respondents failed to supplement their NRCP
16.1 disclosures as required under NRCP 26(e). Specifically, respondents
never served a required supplemental disclosure that Dr. Gomez would be
testifying at trial about the "standard" for discarding a backboard.
We need not decide whether Dr. Gomez's testimony qualified as
44expert testimony" because he should have been prepared to give his

testimony regarding the standard for removing a backboard at the time of
his deposition pursuant to the NRCP 30(b)(6) notice.11 Thus, the district

11 We note that in the district court's order denying Hayes's motion in
limine on this issue the court expressed concern that there was no legal
authority establishing that Dr. Gomez was required to testify consistently
with his deposition testimony. While the district court's reasoning was not

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court erred in permitting Dr. Gomez's expanded trial testimony because it
exceeded the scope of his deposition testimony and was not timely disclosed
in a supplement as required.
The cumulative effect of the trial errors resulted in an unfair trial for Hayes
We now consider whether the cumulative effect of the above
trial errors materially affected Hayes's substantial right to a fair trial such
that a new trial should have been granted. The application of the
cumulative error doctrine in this case provides a pathway to ensure that a
trial is fair despite its imperfections. In applying the doctrine to this case,
we conclude that the errors raised by Hayes—when cumulated—materially
affected Hayes's substantial right to a fair trial. Pellicer, 974 A.2d at 1089.
The jury should have been able to assess Dr. Watson's demeanor by seeing
the video clips, which may have provided a clearer indication of his
reliability as a witness than "the literal meaning of his words." Yida, 498
F.3d at 951. The district court should have sustained Hayes's objection
during closing argument, and a curative instruction should have been given
that workers' compensation does not preclude recovery in a tort action
regardless of the largesse of the lien amount. Cramer, 116 at 531, 3 P.3d at
669. The jury should not have been able to consider trial testimony from an
NRCP 30(b)(6) witness regarding the standard for discarding a backboard,
as that testimony was not disclosed under NRCP 26(e) as required. Thus,
we conclude that the cumulative effect of these errors "undermines our
confidence" that Hayes received a fair trial, making the judgment

necessarily incorrect, this was not a mere "inconsistency" but new testimony
on a topic area from an NRCP 30(b)(6) notice that should have either been
disclosed at deposition or timely supplemented under NRCP 26(e)(1).
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inherently unreliable. Pellicer, 974 A.2d at 1089; see also Utah Chapter of
Sierra Club, 226 P.3d at 736.12
CONCLUSION
"A trial is a dynamic organism which can be desensitized by too
much error or too much curative instruction." Diakamopoulos v. Monmouth
Med. Cir., 711 A.2d 321, 331 (N.J. Super. Ct. App. Div. 1998). Applying the
cumulative error doctrine to evaluate the fairness of the trial in this case,
we conclude that "too much error" occurred, causing an imperfect trial to
become an unfair one. Id. Therefore, the district court erred in failing to
grant Hayes a new trial under NRCP 59(a). Accordingly, we reverse and
remand for a new trial.

4
0,004 1°".elesse„,
Bulla

We concur:
41/4.

C.J.

Westbrook

121n light of our disposition, we need not consider Hayes's argument
that the jury failed to follow the jury instructions on negligence, or any of
the other errors raised. See Engelson, 139 Nev., Adv. Op. 58, 542 P.3d at
446 n.14.
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(1); 194713 .44D.